Citation Nr: 0805696
Decision Date: 02/20/08 Archive Date: 03/03/08
DOCKET NO. 04-43 075 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to an increased rating for post traumatic stress
disorder (PTSD), currently evaluated as 70 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S.M. Cieplak, Counsel
INTRODUCTION
The veteran served on active duty from February 1963 to
February 1967 with the U.S. Air Force and active duty for
training with the Army National Guard for the period from
June 9, 1990 to June 16, 1990. In accordance with a November
19, 1997 Board for Correction of Military Records proceeding
(Volume 2 of Claims File), he was also awarded incapacitation
pay from June 17, 1990 to September 17, 1991, at which time
he was discharged for physical disability.
This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York, which continued a 30 percent evaluation
for PTSD. The evaluation was increased to 50 percent and,
thereafter, to 70 percent, effective from January 14, 1998,
the date of claim, pursuant to a May 2003 rating and an
October 2004 rating respectively.
According to a February 2007 report of contact, the veteran
is reported to have verbally confirmed withdrawal of a
request for personal hearing before a Travel Section of the
Board. However, according to a Statement of Accredited
Representative dated June 6, 2007, the representative clearly
indicated that the veteran did not withdraw his hearing
request. An October 2007 Statement of Accredited
Representative indicated that a hearing was not requested.
The Board views this as the final decision in this matter,
and no further action regarding a hearing is required.
In a statement dated October 17, 2007, the veteran's
representative filed a claim for increased rating for the
veteran's service connected right hip disorder. Inasmuch as
that matter is not properly before the Board, it is referred
to the AMC/RO for disposition as appropriate.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.
2. The veteran's PTSD was productive of total occupational
and social impairment from January 14, 1998, the date of the
claim for increased rating.
CONCLUSION OF LAW
The criteria for a 100 schedular rating for PTSD have been
approximated from the date of claim. 38 U.S.C.A. §§ 1155,
5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.2, 4.3,
4.6, 4.7, 4.130, Diagnostic Code 9411 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The provisions of the Veterans Claims Assistance Act of 2000
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a), and as interpreted by the United States Court of
Appeals for Veterans Claims (the Court) have been fulfilled
by information provided to the veteran in letters from the RO
dated in April 2001, December 2003 . Those letters notified
the veteran of VA's responsibilities in obtaining information
to assist the veteran in completing his claim, identified the
veteran's duties in obtaining information and evidence to
substantiate his claim, and requested that the veteran send
in any evidence in his possession that would support his
claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)),
Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v.
Principi, 18 Vet. App. 112 (2004). See also Mayfield v.
Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other
grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson
(Mayfield II), 20 Vet. App. 537 (2006).
During the pendency of this appeal, the Court issued a
decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006) finding that the VCAA notice requirements applied to
all elements of a claim. In addition, the decision in
Vazquez-Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30,
2008) finding certain minimum 38 U.S.C. § 5103(a) notice
requirements. The record does not reflect that the veteran
was provided with such notices. However, as the Board's
decision herein awards the requested relief from the date of
the claim, there is accordingly no possibility of prejudice
to the appellant under the notice requirements of
Dingess/Hartman or Vazquez-Flores.
The veteran has been made aware of the information and
evidence necessary to substantiate his claim and has been
provided opportunities to submit such evidence. The RO has
properly processed the appeal following the issuance of the
required notice. Moreover, all pertinent development has
been undertaken, examinations have been performed, and all
available evidence has been obtained in this case. The
appellant has not identified any additional evidence that
could be obtained to substantiate the claim. Clearly, from
submissions by and on behalf of the veteran, he is fully
conversant with the legal requirements in this case. Thus,
the content of these letters complied with the requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No
further action is necessary for compliance with the VCAA.
Factual Background
The veteran was injured in a head on automobile accident in
1990. The driver of the other vehicle was fatally injured.
The veteran was awarded service connection for PTSD,
evaluated as 30 percent disabling from the date of his
separation in 1991. On January 14, 1998, the veteran filed
for an increased rating.
A June 1997 mental health treatment note provided a continued
diagnosis of PTSD along with a Global Assessment of
Functioning (GAF) of 45. A January 2000 treatment note
described him as emotionally distant from his family and also
reported a GAF of 45. The report noted that the veteran
worked part time as a security guard at a local college. The
number of hours worked was not noted.
An August 1998 statement from The City College was to the
effect that the veteran was employed full time from July 1993
to August 18, 1997, when he resigned for medical reasons at
the advice of his physician.
Associated with the claims folder is a June 1999 statement
from the Social Security Administration (SSA) which was to
the effect that the veteran had been in receipt of disability
benefits since February 1998 due to an organic mental
disorder.
The veteran was afforded a VA psychiatric examination in May
2001. He reported that he was severely injured in the auto
accident, was trapped in the flaming vehicle, and worried
that the vehicle would explode. He was described as moody
and that he slept poorly. He complained of memory
disturbance that might be related to his medication. He
described irritability and distemper and chronic lack of
sleep. The examiner commented that the veteran had made
respectful attempts to work despite considerable physical
impairment and psychiatric compromise as a result of the
accident. He was described as unshaven and malodorous. He
exhibited decreased facial expression and increased latency
to his speech. He described a dysphoric affect with some
aggressive engagement. His self esteem is compromised by his
disability. No thought disorder was apparent. PTSD with
associated depressed affect was assessed. A GAF of 46 was
assigned.
Entitlement to a total disability rating based on individual
unemployability (TDIU) due to service-connected disabilities,
effective from January 14, 1998, was awarded pursuant to a
May 2003 rating.
The veteran was afforded a VA psychiatric examination in
September 2007. The veteran reported that he was unable to
relate well to others; he felt detached, with hypervigilance
and exaggerated startle response. On mental status
examination, he was described as having a depressed mood and
a constricted affect. Insight and judgment were reported as
fair. GAF was reported as 40. The examiner reported
significant psychiatric symptoms which affect him in the
family and social area as well as preventing him from being
employed.
Analysis
Disability ratings are rendered upon the VA's Schedule for
Rating Disabilities as set forth at 38 C.F.R. Part 4. The
percentage ratings represent as far as can practicably be
determined the average impairment in earning capacity in
civil occupations. The disability must be viewed in relation
to its history. 38 C.F.R. § 4.1. The higher evaluation
shall be assigned where the disability picture more nearly
approximates the criteria for the next higher evaluation. 38
C.F.R. § 4.7. While lost time from work related to a
disability may enter into the evaluation, the rating schedule
is "considered adequate to compensate for considerable loss
of working time from exacerbations proportionate" with the
severity of the disability. 38 C.F.R. § 4.1.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). However, where an
increase in the level of a service-connected disability is at
issue, the primary concern is the present level of
disability. Francisco v. Brown, 7 Vet. App. 55 (1994).
Nevertheless, the Board acknowledges that a claimant may
experience multiple distinct degrees of disability that might
result in different levels of compensation from the time the
increased rating claim was filed until a final decision is
made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The
analysis in the following decision is therefore undertaken
with consideration of the possibility that different ratings
may be warranted for different time periods. The present
level of disability is of primary concern where service
connection has been established and an increase in the
disability rating is at issue. Francisco v. Brown, 7 Vet.
App. 55, 58 (1996).
In adjudicating the increased rating claim, the Board
determines whether (1) the weight of the evidence supports
the claim, or (2) the weight of the "positive" evidence in
favor of the claim is in relative balance with the weight of
the "negative" evidence against the claim: the appellant
prevails in either event. However, if the weight of the
evidence is against the appellant's claim, the claim must be
denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert
v. Derwinski, 1 Vet. App. 49 (1990).
The veteran's PTSD is evaluated according to the following
criteria:
General Rating Formula for Mental Disorders:
Ratin
g
Total occupational and social impairment, due to such
symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of
hurting self or others; intermittent inability to
perform activities of daily living (including
maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names
of close relatives, own occupation, or own name
100
Occupational and social impairment, with deficiencies
in most areas, such as work, school, family relations,
judgment, thinking, or mood, due to such symptoms as:
suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently
illogical, obscure, or irrelevant; near-continuous
panic or depression affecting the ability to function
independently, appropriately and effectively impaired
impulse control (such as unprovoked irritability with
periods of violence); spatial disorientation; neglect
of personal appearance and hygiene; difficulty in
adapting to stressful circumstances (including work or
a worklike setting); inability to establish and
maintain effective relationships
70
38 C.F.R. § 4.130 Diagnostic Code 9411 (2006)
Global Assessment of Functioning score (GAF) is a scale
reflecting the "psychological, social, and occupational
functioning on a hypothetical continuum of mental health-
illness." See Richard v. Brown, 9 Vet. App. 266 (1996)
citing Diagnostic and Statistical Manual of Mental Disorders,
4th ed. 1994) (DSM- IV).
Global Assessment of Functioning (GAF) Scale
Consider psychological, social, and occupational functioning
on a hypothetical continuum of mental health-illness. Do not
include impairment in functioning due to physical (or
environmental) limitations.
50
??
41
Serious symptoms (e.g., suicidal ideation, severe
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to an increased rating for post traumatic stress
disorder (PTSD), currently evaluated as 70 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S.M. Cieplak, Counsel
INTRODUCTION
The veteran served on active duty from February 1963 to
February 1967 with the U.S. Air Force and active duty for
training with the Army National Guard for the period from
June 9, 1990 to June 16, 1990. In accordance with a November
19, 1997 Board for Correction of Military Records proceeding
(Volume 2 of Claims File), he was also awarded incapacitation
pay from June 17, 1990 to September 17, 1991, at which time
he was discharged for physical disability.
This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2003 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York, which continued a 30 percent evaluation
for PTSD. The evaluation was increased to 50 percent and,
thereafter, to 70 percent, effective from January 14, 1998,
the date of claim, pursuant to a May 2003 rating and an
October 2004 rating respectively.
According to a February 2007 report of contact, the veteran
is reported to have verbally confirmed withdrawal of a
request for personal hearing before a Travel Section of the
Board. However, according to a Statement of Accredited
Representative dated June 6, 2007, the representative clearly
indicated that the veteran did not withdraw his hearing
request. An October 2007 Statement of Accredited
Representative indicated that a hearing was not requested.
The Board views this as the final decision in this matter,
and no further action regarding a hearing is required.
In a statement dated October 17, 2007, the veteran's
representative filed a claim for increased rating for the
veteran's service connected right hip disorder. Inasmuch as
that matter is not properly before the Board, it is referred
to the AMC/RO for disposition as appropriate.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished.
2. The veteran's PTSD was productive of total occupational
and social impairment from January 14, 1998, the date of the
claim for increased rating.
CONCLUSION OF LAW
The criteria for a 100 schedular rating for PTSD have been
approximated from the date of claim. 38 U.S.C.A. §§ 1155,
5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1, 4.2, 4.3,
4.6, 4.7, 4.130, Diagnostic Code 9411 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The provisions of the Veterans Claims Assistance Act of 2000
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a), and as interpreted by the United States Court of
Appeals for Veterans Claims (the Court) have been fulfilled
by information provided to the veteran in letters from the RO
dated in April 2001, December 2003 . Those letters notified
the veteran of VA's responsibilities in obtaining information
to assist the veteran in completing his claim, identified the
veteran's duties in obtaining information and evidence to
substantiate his claim, and requested that the veteran send
in any evidence in his possession that would support his
claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)),
Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v.
Principi, 18 Vet. App. 112 (2004). See also Mayfield v.
Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other
grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson
(Mayfield II), 20 Vet. App. 537 (2006).
During the pendency of this appeal, the Court issued a
decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006) finding that the VCAA notice requirements applied to
all elements of a claim. In addition, the decision in
Vazquez-Flores v. Peake, No. 05-355 (U.S. Vet. App. Jan. 30,
2008) finding certain minimum 38 U.S.C. § 5103(a) notice
requirements. The record does not reflect that the veteran
was provided with such notices. However, as the Board's
decision herein awards the requested relief from the date of
the claim, there is accordingly no possibility of prejudice
to the appellant under the notice requirements of
Dingess/Hartman or Vazquez-Flores.
The veteran has been made aware of the information and
evidence necessary to substantiate his claim and has been
provided opportunities to submit such evidence. The RO has
properly processed the appeal following the issuance of the
required notice. Moreover, all pertinent development has
been undertaken, examinations have been performed, and all
available evidence has been obtained in this case. The
appellant has not identified any additional evidence that
could be obtained to substantiate the claim. Clearly, from
submissions by and on behalf of the veteran, he is fully
conversant with the legal requirements in this case. Thus,
the content of these letters complied with the requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No
further action is necessary for compliance with the VCAA.
Factual Background
The veteran was injured in a head on automobile accident in
1990. The driver of the other vehicle was fatally injured.
The veteran was awarded service connection for PTSD,
evaluated as 30 percent disabling from the date of his
separation in 1991. On January 14, 1998, the veteran filed
for an increased rating.
A June 1997 mental health treatment note provided a continued
diagnosis of PTSD along with a Global Assessment of
Functioning (GAF) of 45. A January 2000 treatment note
described him as emotionally distant from his family and also
reported a GAF of 45. The report noted that the veteran
worked part time as a security guard at a local college. The
number of hours worked was not noted.
An August 1998 statement from The City College was to the
effect that the veteran was employed full time from July 1993
to August 18, 1997, when he resigned for medical reasons at
the advice of his physician.
Associated with the claims folder is a June 1999 statement
from the Social Security Administration (SSA) which was to
the effect that the veteran had been in receipt of disability
benefits since February 1998 due to an organic mental
disorder.
The veteran was afforded a VA psychiatric examination in May
2001. He reported that he was severely injured in the auto
accident, was trapped in the flaming vehicle, and worried
that the vehicle would explode. He was described as moody
and that he slept poorly. He complained of memory
disturbance that might be related to his medication. He
described irritability and distemper and chronic lack of
sleep. The examiner commented that the veteran had made
respectful attempts to work despite considerable physical
impairment and psychiatric compromise as a result of the
accident. He was described as unshaven and malodorous. He
exhibited decreased facial expression and increased latency
to his speech. He described a dysphoric affect with some
aggressive engagement. His self esteem is compromised by his
disability. No thought disorder was apparent. PTSD with
associated depressed affect was assessed. A GAF of 46 was
assigned.
Entitlement to a total disability rating based on individual
unemployability (TDIU) due to service-connected disabilities,
effective from January 14, 1998, was awarded pursuant to a
May 2003 rating.
The veteran was afforded a VA psychiatric examination in
September 2007. The veteran reported that he was unable to
relate well to others; he felt detached, with hypervigilance
and exaggerated startle response. On mental status
examination, he was described as having a depressed mood and
a constricted affect. Insight and judgment were reported as
fair. GAF was reported as 40. The examiner reported
significant psychiatric symptoms which affect him in the
family and social area as well as preventing him from being
employed.
Analysis
Disability ratings are rendered upon the VA's Schedule for
Rating Disabilities as set forth at 38 C.F.R. Part 4. The
percentage ratings represent as far as can practicably be
determined the average impairment in earning capacity in
civil occupations. The disability must be viewed in relation
to its history. 38 C.F.R. § 4.1. The higher evaluation
shall be assigned where the disability picture more nearly
approximates the criteria for the next higher evaluation. 38
C.F.R. § 4.7. While lost time from work related to a
disability may enter into the evaluation, the rating schedule
is "considered adequate to compensate for considerable loss
of working time from exacerbations proportionate" with the
severity of the disability. 38 C.F.R. § 4.1.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). However, where an
increase in the level of a service-connected disability is at
issue, the primary concern is the present level of
disability. Francisco v. Brown, 7 Vet. App. 55 (1994).
Nevertheless, the Board acknowledges that a claimant may
experience multiple distinct degrees of disability that might
result in different levels of compensation from the time the
increased rating claim was filed until a final decision is
made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The
analysis in the following decision is therefore undertaken
with consideration of the possibility that different ratings
may be warranted for different time periods. The present
level of disability is of primary concern where service
connection has been established and an increase in the
disability rating is at issue. Francisco v. Brown, 7 Vet.
App. 55, 58 (1996).
In adjudicating the increased rating claim, the Board
determines whether (1) the weight of the evidence supports
the claim, or (2) the weight of the "positive" evidence in
favor of the claim is in relative balance with the weight of
the "negative" evidence against the claim: the appellant
prevails in either event. However, if the weight of the
evidence is against the appellant's claim, the claim must be
denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert
v. Derwinski, 1 Vet. App. 49 (1990).
The veteran's PTSD is evaluated according to the following
criteria:
General Rating Formula for Mental Disorders:
Ratin
g
Total occupational and social impairment, due to such
symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of
hurting self or others; intermittent inability to
perform activities of daily living (including
maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names
of close relatives, own occupation, or own name
100
Occupational and social impairment, with deficiencies
in most areas, such as work, school, family relations,
judgment, thinking, or mood, due to such symptoms as:
suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently
illogical, obscure, or irrelevant; near-continuous
panic or depression affecting the ability to function
independently, appropriately and effectively impaired
impulse control (such as unprovoked irritability with
periods of violence); spatial disorientation; neglect
of personal appearance and hygiene; difficulty in
adapting to stressful circumstances (including work or
a worklike setting); inability to establish and
maintain effective relationships
70
38 C.F.R. § 4.130 Diagnostic Code 9411 (2006)
Global Assessment of Functioning score (GAF) is a scale
reflecting the "psychological, social, and occupational
functioning on a hypothetical continuum of mental health-
illness." See Richard v. Brown, 9 Vet. App. 266 (1996)
citing Diagnostic and Statistical Manual of Mental Disorders,
4th ed. 1994) (DSM- IV).
Global Assessment of Functioning (GAF) Scale
Consider psychological, social, and occupational functioning
on a hypothetical continuum of mental health-illness. Do not
include impairment in functioning due to physical (or
environmental) limitations.
50
??
41
Serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any
serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep
a job).
40
?
?
??
31
Some impairment in reality testing or communication
(e.g., speech is at times illogical, obscure, or
irrelevant) OR major impairment in several areas,
such as work or school, family relations, judgment,
thinking, or mood (e.g., depressed man avoids
friends, neglects family, and is unable to work;
child frequently beats up younger children, is
defiant at home, and is failing at school).
The record reflects that the veteran's GAF scores reported
above were 45, 46 and 40 respectively.
The evidence shows that through out the appeal period the
veteran's PTSD has resulted in significant impairment. The
Social Security Administration awarded him disability
benefits effective February 1998, based on an organic brain
disorder. Despite his other very serious disabilities, his
psychiatric impairment was the single disorder identified in
the SSA letter as the basis for his disability award. When
evaluated in 2001, he was depressed and his affect was
dysphoric. The 2001 VA examination showed poor hygiene and
the September 2007 examiner noted that the veteran exhibited
significant psychiatric symptoms impairing his social and
family functioning and also prevented him from working.
Furthermore, the examinations showed depression, sleep
disturbance, fatigue, poor self-esteem, anger management
problems and memory impairment. The GAF of 45-46 is
indicative of serious impairment and the GAF of 40 is
indicative of even some impairment in reality testing or
communication or any major impairment in several areas.
After reviewing the record the Board finds that the degree of
disability resulting from the PTSD more nearly approximates
the criteria for a 100 percent scheduler evaluation. 38
C.F.R. § 4.7 (2007). Accordingly, a 100 percent rating is
warranted from the date of the claim, January 14, 1998. This
is the highest rating available.
ORDER
Entitlement to a 100 percent evaluation for PTSD is granted,
effective January 14, 1998, subject to the provisions
governing the award of monetary benefits.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs